SAMUEL J. ABATE v. PAUL F. MUNDT ET AL. (10/08/69)

COURT OF APPEALS OF NEW YORK

decided: October 8, 1969.

SAMUEL J. ABATE, AS A TAXPAYER OF THE COUNTY OF ROCKLAND, AND AS A REPRESENTATIVE OF OTHERS SIMILARLY SITUATED, APPELLANT-RESPONDENT, AND JUNE MOLOF ET AL., AS INDIVIDUALS AND AS REPRESENTATIVES OF OTHERS SIMILARLY SITUATED, ET AL., INTERVENORS-APPELLANTS-RESPONDENTS,v.PAUL F. MUNDT ET AL., CONSTITUTING THE BOARD OF SUPERVISORS OF THE COUNTY OF ROCKLAND, ET AL., RESPONDENTS-APPELLANTS

Judges Scileppi, Bergan, Breitel and Gibson concur with Judge Burke; Chief Judge Fuld dissents in part and votes to modify in a separate opinion in which Judge Jasen concurs.

Author: Burke

Rockland County is presently governed by a Board of Supervisors, consisting of the Supervisors of each of the county's five constituent towns. In early 1966, a Federal District Court, upon its finding that the board was malapportioned, ordered that a plan be devised which would satisfy the requirements of the Equal Protection Clause and that such plan be submitted to the voters of the county for their approval. (Lodico v. Board of Supervisors, 256 F. Supp. 442.) Pursuant to that order, three plans were devised and submitted to the voters but were rejected at the polls.

In September, 1968, the present action was brought to compel the board to reapportion in accordance with constitutional requirements. In response, the board submitted a weighted voting scheme as an interim measure but, upon the plaintiffs' motion, that plan was rejected at Special Term. The board then devised and submitted the plan approved in the courts below, which is the subject of the present appeal.

The plan as adopted provides for a County Legislature composed, on the basis of the population of the county as of 1969, of 18 members chosen from 5 districts which correspond to the county's 5 constituent towns. Each district is assigned its legislators according to the district's population in relation to the population of the smallest district. The smallest district, Stony Point, has a population of 12,114 and is assigned one representative in the County Legislature. The number of representatives to be assigned to each of the other districts is determined by dividing the population of each by the population of the base district, Stony Point, the number of representatives being the whole number resulting from that computation, plus any major fraction. The result in tabular form is as follows:

District Population No. of Representatives

Stony Point 12,114 1

Haverstraw 23,676 2

Orangetown 52,080 4

Clarkstown 57,883 5

Ramapo 73,051 6

Each representative is to be elected at large within the district so that each district other than Stony Point will be a multi-member district. Since the population of none of the other districts is an exact multiple of the population of Stony Point, there is some variation among districts in terms of the population per legislator, with the result that Stony Point is 0.3% "over-represented," Haverstraw is 2.5% "over-represented," Orangetown is 7.1% "under-represented," Clarkstown is 4.8% "over-represented," and Ramapo is 0.2% "under-represented." The plaintiffs attack the plan both on the ground that the board has made no attempt at achieving equality of representation in terms of population and on the ground that the utilization of multimember districts is inherently defective. In addition, the plaintiffs attacked the so-called "two hats" provision of the plan under which each Town Supervisor, by virtue of his election to that office, would also automatically become a member of the County Legislature.

Special Term approved the apportionment plan but modified the "two hats" provision so as to require that Town Supervisors, if they wish to hold seats in the County Legislature, must stand separately for election to that office. The Appellate Division, Second Department, affirmed that determination without opinion, with one Justice dissenting on the ground that the plan merely sought to achieve the best apportionment possible in terms of the maintenance of existing town lines. We, in turn, affirm the order of the Appellate Division.

I

It is, of course, true that the "one man-one vote" principle enunciated in Reynolds v. Sims (377 U.S. 533) is applicable to local legislative bodies as well as to State Legislatures (Avery v. Midland County, 390 U.S. 474, 481). Under the principles set forth for the purpose of determining whether a particular plan of apportionment meets the requirements of the Equal Protection Clause, the question is whether the plan before us adequately apportions representatives on a population basis. However, the issue is not to be resolved merely in terms of a sterile mathematical exercise: "[The] Equal Protection Clause requires that a State make an honest and good faith effort to construct districts * * * as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement." (Reynolds v. Sims, 377 U.S., at p. 577 [emphasis added].) Thus, the mere fact that there is a variation of 12% in the number of people per legislator under the present plan is not of itself sufficient to render the plan constitutionally defective (Roman v. Sincock, 377 U.S. 695, 711; Kirkpatrick v. Preisler, 394 U.S. 526, 530; Town of Greenburgh v. Board of Supervisors, 25 N.Y.2d 817, 818). We must, therefore, in light of the particular circumstances of this case, determine whether the county has made a good faith effort to achieve equality of representation and whether there is sufficient justification for any variance from absolute equality. On this point, it should be recognized that the "one man-one vote" cases have involved at least three levels of legislative reapportionment and that, in dealing with each of these levels, there are quite properly taken into account and weighed in the balance different considerations both as to the permissible variations from strict equality and as to the justification for variations from such strict equality. The United States Supreme Court decisions indicate that, in regard to apportionment of congressional districts, the permissible variation from strict equality is indeed almost micrometric and the justification required for such deviation is correspondingly stringent (see Wesberry v. Sanders, 376 U.S. 1; Kirkpatrick v. Preisler, 394 U.S. 526; Wells v. Rockefeller, 394 U.S. 542). Decisions dealing with apportionment of State Legislatures tend to reflect a broader scope for permissible deviations and a more tolerant attitude toward the practical justification for deviations (see Fortson v. Dorsey, 379 U.S. 433, 437; Burns v. Richardson, 384 U.S. 73; Swann v. Adams, 385 U.S. 440). Similarly, and of particular relevance on this appeal, the court has indicated a willingness to allow a still broader scope for permissible deviations from strict population equality and the justification for such deviations when dealing with local, intrastate legislative bodies (see Sailors v. Board of Educ., 387 U.S. 105; Dusch v. Davis, 387 U.S. 112; Blaikie v. Wagner, 258 F. Supp. 364).

In light of this apparent difference in treatment, it seems clear that we may find the population variance here to be within permissible limits (see Town of Greenburgh v. Board of Supervisors, N.Y.2d 817, supra) and the practical and historical justification for the variance to be sufficient. What the plan does is not to ignore population equality, but rather to achieve substantial equality within the context of a long-established town government framework, thus accommodating both constitutional and practical considerations. (See Jackman v. Bodine, 53 N. J. 585, cert. den. 396 U.S. 822.) It represents a balanced, bona fide application of the "one man-one vote" principle to the needs and circumstances of local government. As such, it comes within the ambit of the Supreme Court's declaration "that variations from a pure population standard might be justified by such state policy considerations as the integrity of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines " (Swann v. Adams, 385 U.S. 440, 444 [emphasis added]) and the declaration that the recognition of such factors in devising an apportionment scheme is permissible so long as they "are free of any taint of arbitrariness or discrimination." (Roman v. Sincock, 377 U.S. 695, 710, supra.) We, therefore, reject the contention that the plan before us is constitutionally defective because of the minor population variance involved.

It is also contended that the plan's incorporation of multimember districts necessarily indicates a constitutional defect. However, the contention flies in the face of the decision in Fortson v. Dorsey (379 U.S. 433) in which the court held that multimember districts, drawn substantially along existing county lines, are constitutionally permissible so long as the vote of each voter is "approximately equal in weight to that of any other citizen in the State.'" (379 U.S., at p. 438). As with Fulton County, Georgia, in Fortson, the population of the Ramapo district in this case is approximately 6 times larger than that of Stony Point, a single-member constituency, and for that reason Ramapo elects 6 representatives. According to the reasoning of that opinion, such a multimember district device is permissible since each voter in Ramapo votes for 6 representatives to represent his interests in the County Legislature and, if the weight of the vote of any voter in Ramapo, when he votes for 6 representatives, is not the exact equivalent of that of a resident of a single-member district, we cannot say that his vote is not approximately equal in weight to that of any other citizen in the county (379 U.S., at pp. 437-438). That conclusion also adequately disposes of any claimed deficiency in such a plan based upon speculative mathematical analysis of such things as the "effectiveness" of actual representation. Indeed, as long as the basic population requirements of Reynolds v. Sims are met, and we hold that the Rockland County plan does meet those fundamental requirements, the use of multimember districts "will constitute an invidious discrimination only if it can be shown that 'designedly or otherwise, a multimember constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.'" (Burns v. Richardson, 384 U.S. 73, 88, supra). No such showing has been made as to the plan under attack in this case. We, therefore, hold that the Rockland County apportionment plan is constitutional.

II

The plan as adopted also contained a so-called "two hats" provision by which the person elected to the office of Town Supervisor of each of the five towns would automatically be entitled to a seat in the County Legislature. Special Term modified this provision of the plan so as to require that, if a Town Supervisor also wished to hold a seat as a County Legislator, he must be elected separately to the latter position. We affirm that determination. Town Supervisors are eligible to sit as members of County Legislatures by virtue of the recently amended section 10 of the Municipal Home Rule Law (L. 1969, ch. 834) which provides, in pertinent part, that "A plan of apportionment adopted by a county * * * may provide * * * supervisors of towns * * * shall be eligible to be elected as members of the county legislative body." (Emphasis added). The use of the term "elected" must be taken as indicating an intention on the part of the Legislature that a Town Supervisor could serve as a County Legislator only if he prevailed in an election for the office of County Legislator. Although it is true that we held in Matter of Brayman v. Stevens (20 N.Y.2d 868) that section 411 of the County Law prohibited a county officer from serving as a Town Supervisor, that decision antedated the enactment of section 10 (subd. 1, par. a, cl. [13], sub cl. [b]) of the Municipal Home Rule Law with which it is obviously inconsistent. Under familiar principles of statutory construction, the conflict between these provisions must be resolved by holding that the latter section impliedly repealed the former insofar as they are inconsistent, with the result that the latter is controlling. Special Term, therefore, properly determined that the plan should be modified to the extent indicated above.

Accordingly, the order of the Appellate Division, Second Department, should be affirmed.

Disposition

Order affirmed.

Chief Judge Fuld (dissenting in part). I agree that the Municipal Home Rule Law (§ 10, subd. 1, par. a, cl. [13], sub cl. [b]) permits a Town Supervisor to serve on the County Legislature and requires that he stand separately for election to that body. I cannot, however, subscribe to the court's decision that the reapportionment plan adopted by the board in this case satisfies the demands of the Equal Protection Clause. In my view, the apportionment standards which apply to the States also apply to municipalities -- e.g., counties, cities and towns -- which exercise general governmental functions.

As the court's opinion indicates, Rockland County's proposal provides that each of its five towns shall constitute a legislative district. Using the smallest town, Stony Point, as a base, it accords each of the other four towns additional seats in the County Legislature in an amount determined by dividing their populations by that of Stony Point and rounding off the result to the nearest whole number. Following this year's election under the plan, Orangetown's legislators will represent 12% more people than those from Clarkstown, even though each would be accorded the same vote in the County Legislature.

There is no doubt that, in passing on a plan of apportionment, we are governed by the "one man, one vote" principle laid down in Reynolds v. Sims (377 U.S. 533) and in the cases which followed it. The majority asserts, however, that the strictures of that principle vary and are to be applied differently depending on the "level * * * of legislative reapportionment" involved (opn., p. 315). More specifically, it is stated that, although the permissible variation in population between congressional districts is "almost micrometric," there is a somewhat "broader scope for permissible deviations" in the apportionment of State Legislatures and a "still broader scope" where the plan involves "local, intrastate legislative bodies" (opn., p. 315).

Significantly, though, the opinion furnishes not a single reason which would justify such a differentiation in the cases of counties, and I suggest that there is no basis either in logic or precedent for the distinction sought to be drawn. On the contrary, the very same rationale which requires that all votes be accorded equal weight in elections to Congress and State Legislatures demands rigorous adherence to the one man, one vote principle in a county-wide election of its legislative body. A resident and voter is undoubtedly concerned with the actions of his county or municipal legislature, as he is with those of Congress or the State Legislature. There is no reason in either case why a citizen's voting power -- his ability to influence the outcome of the election -- should depend upon the district in which he happens to live. There is, as the Supreme Court observed in Avery v. Midland County (390 U.S. 474, 481), "little difference, in terms of the application of the Equal Protection Clause and the principles of Reynolds v. Sims, between the exercise of state power through [state] legislatures and its exercise by elected officials in the cities, towns, and counties." Indeed, in Seaman v. Fedourich (16 N.Y.2d 94) and in Iannucci v. Board of Supervisors (20 N.Y.2d 244) -- both of which antedated the Supreme Court's decision in the Avery case -- our court expressly held that the Reynolds principle applies to "elective legislative bodies exercising general governmental powers at the municipal level" (16 N.Y.2d, at p. 101; 20 N.Y.2d, at p. 249) and rejected proposals for legislative apportionment on the county and municipal levels which failed to accord equality of representation. (See, also, Honig v. Board of Supervisors, 24 N.Y.2d 861.)

In support of its conclusion that a lower standard of equality applies to elections of representatives to all local legislative bodies, the court relies on two Supreme Court decisions -- Sailors v. Board of Educ. (387 U.S. 105) and Dusch v. Davis (387 U.S. 112) -- in which plans for the structuring of local governments were upheld. These cases are, however, totally inapposite. Sailors v. Board of Educ., for instance, involved a scheme for the appointment of nonlegislative officials and was not at all concerned with legislative apportionment; and, in the Dusch case, all of the legislators were to be elected at large and districts (or, more precisely, boroughs) were to be used "'merely as the basis of residence for candidates, not for voting or representation'" (387 U.S., at p. 115).*fn1

These cases do, it is true, recognize the need for innovation and flexibility in the organization of local governments; the one man, one vote doctrine does not preclude the development of new governmental forms to meet urgent metropolitan needs. But there is nothing in the decisions which implies that, in drawing electoral districts for county legislative office, it is permissible to accord the votes of citizens living in one area greater weight than is accorded the votes of citizens in another area. "Diluting the weight of votes because of place of residence", the Supreme Court noted in Reynolds (377 U.S. 533, 566, supra), "impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discrimination based upon factors such as race [case cited] or economic status [case cited]."

In considering the plan before us, I find it difficult, if not impossible, to accept the majority's characterization of the 12% deviation infecting the proposed plan as a "minor population variance" (opn., p. 316). I recognize, of course, that mathematical exactness or precision is not always possible and that the test to be applied in determining the validity of a plan is not solely the size of the percentage deviation. Nevertheless, an attempt must be made to keep that deviation to a minimum. As I read the relevant cases, the significant and operative consideration is whether the plan under review reflects such an effort to achieve, "as nearly * * * as is practicable", equality of representation. (Reynolds v. Sims, 377 U.S. 533, 577, supra ; see Kirkpatrick v. Preisler, 394 U.S. 526, 531.) As the court declared in the Kirkpatrick case, legislative districts must be drawn to allow "only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which a justification is shown." (Kirkpatrick v. Preisler, 394 U.S. 526, 531, supra.)

It is the court's position that, despite the deviation population which the plan creates, factors other than population are equally significant and that the proposal represents a "bona fide application of the 'one man-one vote' principle to the needs and circumstances of local government" which satisfies constitutional requirements (opn., p. 316). This, it seems to me, misconceives the meaning of the phrase, "good-faith effort," found in the cases. Even if one were to accept the majority's premise that the demands of the Equal Protection Clause may be relaxed in dealing with a county apportionment plan, nevertheless, the simple fact remains that "[population] is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies." (Reynolds v. Sims, 377 U.S. 533, 567, supra.)

In the present case, population was neither "the starting point" nor "the controlling criterion". It is undisputed and indisputable that the board's sole consideration in fixing legislative districts was the preservation of existing town lines. It was only after the districts had been created and their lines fixed that any attempt was made to equalize the voting representation -- an attempt which could not possibly succeed because of the nature of the plan.

Actually, the 12% deviation neither indicates nor reflects the potential for gross inequality of representation inherent in the scheme. It is a plan not only for the coming election but for those to be held in the future that the court is called upon to approve; in deciding whether the plan meets constitutional standards, we must not blind ourselves to the extremes of discrimination it permits. Thus, even were we convinced that a 12% variation in county government voting power were constitutionally acceptable, the plan before us would be invalid. Since the number of legislators from any town is determined by dividing its population by that of the smallest town and rounding off the result to the nearest whole number, the size of the deviation will vary arbitrarily from year to year, according to the size of the fraction to be rounded.*fn2 For example, had the plan been in effect in 1950, the deviation would have been 26%; in 1957, 22%; in 1963, 27%; and in 1966, 26%. The potential for inequality inherent in the plan becomes even more apparent when one considers that an increase of only 3,000 in the population of Stony Point, assuming that the populations of the other towns remain constant, would change the deviation from the present 12% to approximately 47%. In fact, it is theoretically possible for a plan such as the one before us to result in deviations approaching 100%.*fn3 And, since the plan rigidly fixes district lines -- providing for no variation -- there is no way to compensate for or minimize such extreme deviations.

This, though, does not mean that political subdivisions may not be taken into account when drawing legislative districts. I recognize, of course, that there may be historical and, perhaps, functional reasons for preserving the identity of the towns in a county legislative body -- even though no such reasons have been shown in this case and even though the towns would remain independent, co-ordinate governments under any scheme. All that is required is that a plan be sufficiently flexible to give all the voters of the county an equal voice in its government. Population, as the Reynolds case indicates, need not be the only factor to be considered but it must be the controlling factor (377 U.S., at pp. 579-580):

"[Neither] history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes. Considerations of area alone provide an insufficient justification for deviations from the equalpopulation principle." And, underscoring the same thought, the court went on to say (p. 581):

"[If], even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all of the State's citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired."

Here, quite obviously, population was "submerged as the controlling consideration" in fixing the boundaries of the legislative districts and, consequently, the right of the county's citizens "to cast an effective and adequately weighted vote [has been] unconstitutionally impaired."

That it is possible to reconcile the one man, one vote principle with the desire to preserve town identity in the County Legislature is demonstrated by a proposal prepared by the League of Women Voters and put forward by several of the plaintiffs. Under this plan, all but three of the 18 members of the legislature would still represent districts located wholly within town lines and, as so apportioned, the maximum population deviation would amount to only 4%. Indeed, the plan approved in Town of Greenburgh v. Board of Supervisors (59 Misc. 2d 152, affd. 32 A.D.2d 892, affd. 25 N.Y.2d 817) -- upon which the court relies -- illustrates an approach which could have been, but was not, followed here. Although it resulted in a deviation of 14%, slightly more than will result this year from the plan before us, the proposal in Greenburgh was held acceptable because town lines, while accorded weight, were not treated as inviolate. In sharp contrast to the present case, the traditional town boundaries were disregarded where necessary in order to accommodate the essential interest of equal representation.

In sum, then, in view of the fact that the legislative districts were drawn strictly in accordance with town lines and without regard to population, it is evident that there was no effort, good faith or otherwise, to achieve "as nearly as practicable" equality of voting power. Since under the plan the weight of a citizen's vote varies depending on the town in which he lives and this variance is likely to increase in future years, the plan deprives the voters of equal protection of the laws and may not be constitutionally sustained.*fn4 However, in view of the imminence of the 1969 election and the fact that the plan achieves far greater equality than the existing Board of Supervisors form of county government, I would approve the plan as an interim measure and require the County Legislature, to be elected next month, to formulate a further plan of apportionment consistent with constitutional standards. (See Honig v. Board of Supervisors, 24 N.Y.2d 861, supra.)

The order appealed from should be modified to the extent of directing that a new apportionment plan be adopted by the County Legislature chosen in the 1969 election and, as so modified, affirmed.

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